Wednesday, November 7, 2007

The facts are these: On April 26, 2004, Michael Williams posted a public message in an Internet chat room, which read, “Dad of toddler has ‘good’ pics of her an [sic] me for swap of your toddler pics, or live cam.” A federal agent who was monitoring the forum responded to the message and engaged the individual in conversation. In one of his responses Williams said, “I’ve got hc [hard core] pictures of me and dau, and other guys eating her out — do you??” Williams later sent seven nude images of actual minors, approximately 5-15 years old, exposing themselves and/or engaging in sexually explicit conduct.

Mr. Williams was charged with two counts of possession of child pornography and promoting and distributing child pornography. After reserving the right to bring this constitutional action, he pleaded guilty to both counts.

The statute under which Mr. Williams was charged prohibits “knowingly … advertis[ing], promot[ing], present[ing], distribut[ing], or solicit[ing] … Any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material” is illegal child pornography. He appealed his conviction, saying the statute is overly broad and impermissibly vague and thus facially unconstitutional.

His argument goes like this:

Imagine: you could have someone reviewing American Beauty or Traffic — both Hollywood movies with some objectionable adult content — saying the movies depicted child pornography. Whether that assertion is true or not, the person can be charged under this statute. So, clearly there is protected speech that is reached by this statute, and, therefore, it is too broad or at least impermissibly vague.

I know that common sense tells you that this law is obviously not aimed at movie reviewers but at people like Mr. Williams who would pander illegal child pornography, including depictions of their own children. But we are talking about lawyers here, and this is the Supreme Court after all, so bear with me.

Respondent’s counsel even argued that this law would have a chilling effect on free speech and that people who wanted to speak out in relation to a movie would feel that they could not for fear of violating the law.

If we are sincere in looking at the statute at hand and the facts presented by this case, there should be no question that there is no violation of the First Amendment right to free speech here. After all, the material at issue is illegal child pornography. The mere possession of it is a violation of the law. That was not challenged in this case.

It is clear that the federal government has a compelling interest in protecting children, and the statute goes after individuals with a specific intent to pander the material. A law that protects children in such a significant way should not be struck down simply because there might be one person somewhere in Fantasyland that, given the right circumstances, might say that it violates their free speech. That is nonsense.